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Flashcards in Week 13 materials Deck (49):
1

Syllabus Section 22
•Sentencing principles:
•Purposes of sentencing and sentencing guidelines
•Assessment of seriousness, reduction in sentence for guilty plea, aggravating
and mitigating features, the totality principle and prevalence
•Pre-sentence reports, medical reports, and victim personal statements
•Indications as to sentence

Section 23

Section 24

Syllabus Section 23
•Non-custodial sentences
•Absolute and conditional discharges
•Fines and the consequences of default
•Community sentences and the consequences of breach of a community
sentence
•Binding over orders

Syllabus Section 24
•Custodial sentences
•Custodial sentences in the Crown Court and
magistrates’ courts
•Restrictions on imposing custodial sentences
•Length of sentence
•Suspended sentences

2

Workbook Q.1
Classification of Theft:
•Either-way
You need to memorise this classification.
But note special provisions relating to ‘low-value
shoplifting’ – see SGS 3 PPTS

a) Procedure between conviction & sentence
in CCT
• Guilty plea taken.
• Prosecution summary of facts of offence (often unnecessary if at the
conclusion of a trial D20.2
• Antecedents if applicable D20.45
• Prosecution duties re sentence:
 Neutral attitude to sentence.
 Deal with any ancillary orders.
 Assist court to avoid appealable error (ensure judge does not exceeding
sentencing powers; remind judge of statutory provisions and guidelines).
Def counsel must also be in a position to do this (D20.6)
 Prepare ‘plea and sentence’ document (identifies aggravating and mitigating
factors, statutory provisions and guidelines) D20.3
• Any Victim impact statement considered D20.4
• Any TICs taken into account D20.52-53

3

a) Procedure between conviction & sentence
in CCT cont

After summary of facts and antecedents court considers
any reports prepared for the defence (pre-sentence,
medical or psychiatric). May adjourn for PSR (A CC
Judge will have read the PSR before the hearing;
Justices may or may not have seen it). D20.59; D20.66-
68; D20.72
• Plea in Mitigation from defence (If a fine or other
financial order such as compensation or costs is a
possibility, make sure you have the latest details of your
client’s finances and that you have taken instructions on
time to pay by instalments). D20.76

4

a) Obligation placed on judge when passing
sentence:

• Sentence passed/pronounced with reasons (reasons
obligatory unless sentence fixed by law or otherwise
mandatory):
• Explain sentence in non-legal terms
• Identify any relevant guidelines
• Where relevant, why offence serious enough to warrant
custody
• Reduction for guilty plea and significant aggravating and
mitigating factors D20.92-3

5

b) Procedure in the magistrates’ court

• Overall follows same pattern D23.1-2; D23.6
• Different to CC to some extent as Theft is EWO.
• Guilty plea entered.
• Decision taken re whether mags sentencing powers sufficient.
• If sufficient, they deal with offence.
• If insufficient, commit to CC.
• Once decision taken re committal remaining procedure in CC and
MC same as in a) above
• If mags adjourn for PSR, max. 4 wks if D on bail, max. 3 wks if in
custody D23.2
• Sentence decision must be by majority D23.8
• Mags must give explanation re sentence unless D and public absent
D23.9

6

b) Max. sentence in MC

• Two x EWO.
• Up to six months per offence.
• Maximum 12 months in total.
• (unless the six-month ceiling is expressly
excluded by statute) D23.14; D23.16-17
• We will return to committal for sentence in SGS
8.

7

c) Five purposes of sentencing

• Punishment of offender.
• Reduction in crime.
• Reform and rehabilitation of offenders.
• Protection of public.
• Making of reparation to those affected by the
offence.
E1.1-2

8

d)Sentencing hierarchy

Custodial Sentences (including suspended
sentences)
Single generic Community Sentence
Fines
Discharges (conditional and absolute)
Bind-Overs

9

d) Sentencing hierarchy

Bind over to keep the peace E13.1-3
•Preventative justice
•Prosecution agrees not to proceed if D agrees to be bound over.
•D enters into a recognizance in an amount that will be forfeited if fails to keep peace for
specified period.
Absolute/Conditional Discharge E12.1-3
•Court is of the opinion, having regard to the circumstances, including the nature of the
offence and the offender’s character, that it is inexpedient to inflict punishment.
•Not a community sentence.
•Absolute: no penalty, but rehabilitation period of six months.
•Conditional: sole condition is that the offender should commit no further offence during
the period of the con dis (period of con dis must not exceed 3 years)
•The effect of a breach of a con dis is covered later in this question.

10

d) Sentencing hierarchy

Fine E15.1 onwards (CCT) and E15.8 onwards (MC)
CCT:
•Can impose fine either instead of, or in addition to, any other sentence. E15.1
•No statutory limit in CC E15.2
•Can order payment in instalments E15.2
•Term of imprisonment/detention in default must be fixed E15.3
MC:
•As of 12 March 2015 no statutory limit E15.8
General principles re fines:
•Amount must reflect the seriousness of the offence, but the court must also take into
account the offender’s financial circumstances (financial circumstances can result in an
increase or a reduction). E15.16; E15.18
•Instalments should require payment within a reasonable time (normally within 12
months) E15.21

11

d) Sentencing hierarchy

Community Sentences (s. 177 of the CJA 2003).
• Threshold test: is the offence, or the combination of the offence
and one or more offences associated with it, serious enough to
warrant a community sentence (i.e. a community order with one or
more requirements) E8.2
• Single generic community order, which will include requirements
drawn from the list contained in the Act. E8.2
• What must court do before imposing a community order? the court
must obtain and consider a presentence report: s .156(3) CJA
2003, unless of the opinion that it is unnecessary to do so: s.
156(4). (dealt with later in Q) E8.7
• NB. Community order requirements: You need to know the list
at E8.9, but not to memorise the lengths of individual orders

12

d) Sentencing hierarchy

Custody
•Threshold? The offence, or the combination of the offence and one or more offences associated with
it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.
E2.7
CCT:
•Max. term almost always laid down by statute E2.2
MC:
•Maximum 6 months in the magistrates’ court (or 12 months for 2 x separate E/way) E2.5
•Min: 5 days in MC E2.5
Generally: Must get PSR unless unnecessary.
Principles applicable in determining length of custodial sentence:
Apart from mandatory minimums must be for the shortest term commensurate with the seriousness
of the offence, or combination of offences E2.9
Totality: when dealing with a number of offences, total sentence should be proportionate to overall
seriousness E2.10
Considering shorter period: When considering passing a sentence of 12 months or less, court should
ask itself whether shorter period would be equally effective (Ollerenshaw) E2.11

13

d) Sentencing hierarchy
• Suspended sentence E6.1

• It is a custodial sentence thus the “so serious” threshold has to be
met but the offender does not go directly to jail. E6.3
• Available when court imposes determinate custodial sentence as
follows:
• Length custodial term:
• MC: 14 days – 6 months (or max. 12 months in case of 2 x EWO)
• CC: 14 days – 2 years.
• Supervision and operational period: 6 mths–2 yrs
• S.189, CJA 2003
• See later in Q re breach

14

d) In addition to sentencing hierarchy:
Ancillary orders

Those on the syllabus are as follows:
•Costs – subject to the defendant’s means
•Compensation in respect of any loss/injury
•Forfeiture and Deprivation orders
•Registration of sexual offenders
•Confiscation if a defendant has benefited from his criminal
conduct
•We will return to those that are on the syllabus in more
detail later in the course

15

e) i. Assessment of seriousness
ii. Purpose of determining seriousness

Seriousness = Offenders culpability + harm which the
offence caused, was intended to cause or might
foreseeably have caused E1.7
Purpose of determining seriousness
Allows the sentencer to determine which thresholds have
been crossed, indicate whether a custodial, community or
other sentence is most appropriate and the length of
custody, community requirements or amount of fine. i.e find
the appropriate starting point for the sentence E1.7

16

e) iii. Aggravating factors
• AF:

• The definitive sentencing guideline sets out a list of AF, which are
relevant to sentencing.
• Some reflect higher culpability and some a higher degree of harm.
• There are general AF and those specific to an individual offence
E1.18
• Some matters must be treated as AF:
• Precons
• Offending on bail
• Racial or religious aggravation or offences with a terrorist connection
• Aggravation related to disability, sexual orientation or transgender
identity E1.14-17

17

e)iii. Mitigating factors
• MF:

• The definitive sentencing guideline sets out a list
of MF relevant to sentencing.
• Some reflect lower culpability and some indicate
that the harm caused is less than usually
serious. E1.19

18

e)iv. Statutory AF for Rachel
e)v. Personal mitigation
• Statutory AF for Rachel: previous convictions E.14

Personal mitigation:
• Whether to take account of personal mitigation is at the discretion of
the court E1.20
• General examples: good character, remorse, youth, old age, serious
illness, lapse of time since offences if not the fault of the offender,
pressure to commit the offence (short of duress), addressing
addiction, meritorious conduct not related to offence, impact on
others.
• Rachel: Consider effect on other members of family or innocent third
parties such as employers (her new job likely to be lost, who would
care for the children?). E1.20

19

e)vi. Ancillary orders
e)vii. Ignore
e)viii. Judge considering sentence of 12

Ancillary:
• Costs (self-study session 2)
• Compensation D23.19
When considering passing a sentence of 12
months or less, court should ask itself whether
shorter period would be equally effective
(Ollerenshaw) E2.11

20

f) Discount for a Guilty Plea
Sliding scale:

•First reasonable opportunity: 1/3
•After trial date set: ¼
•Door of the court/after trial begun: 1/10
•Prosecution case overwhelming, an early guilty
plea should attract no more than a 20% reduction
•Rachel: 1/10 discount at door of court.
E1.9

21

g) Consecutive sentences
• Two separate counts so consecutive sentences could be
passed.

• Where offences arise out of same incident sentences
should be concurrent. E2.20
• NB. Principle of totality: sentence should be just and
proportionate. E2.10
• Consecutive if: violence to resist arrest for another
offence; violence to escape, possession of a firearm at
time of committing an offence, offences committed when
on bail, offences committed when a serving prisoner,
offences interfering with the course of justice E2.21
• Rachel: arise out of same incident?

22

h) Pre-sentence report/other reports

• Must obtain before imposes custody or community
sentence, unless offender 18 or over and PSR
unnecessary. E1.27
• Rachel: likely to order due to her history of offending and
personal circumstances. About 11/2 years since she last
offended so any PSR in existence will not be up-to-date.
• Other reports:
• Community Impact Statements: expresses specific crime concerns
of local community E1.29
• Victim personal statements: effect of offence on victim E1.30
• Medical report : mentally disordered offender E1.33

23

i) Role of prosecutor
• It is not the prosecutor’s role to suggest a sentence to the judge so the
prosecutor’s behaviour here was inappropriate.

• Role:
• Prosecution summary of facts of offence (often unnecessary if at the
conclusion of a trial D20.2
• Antecedents if applicable D20.45
• Prosecution duties re sentence:
 Neutral attitude to sentence.
 Deal with any ancillary orders.
 Assist court to avoid appealable error (ensure judge does not exceeding
sentencing powers; remind judge of statutory provisions and guidelines –
including aggravating and mitigating factors). (D20.6)
• Prepare ‘plea and sentence’ document (identifies aggravating and mitigating
factors, statutory provisions and guidelines) D20.3
• Present any Victim impact statement D20.4

24

j) Breach suspended sentence

• Length custodial term:
MC: 14 days – 6 months
CC: 14 days – 2 years.
Supervision and operational period: 6 mths–2 yrs
S.189, CJA 2003

Options available where breach of suspended sentence:
(a) Order to take effect with original custodial period unaltered (usually
served consecutively with sentence for ‘breach’ offence)
(b) Substitute shorter custodial term
(c) Impose fine of up to £2,500
(d) Where the suspended sentence order imposed community
requirements, can impose more onerous community requirements or
extend supervision/operational period
(e) Where no community requirements can still extend operational period.
Must do (a) or (b) unless “unjust” to do so in view of all the
circumstances.
E6.12
NB. Suspended sentence breached if convicted of offence during operational
period or fails without reasonable excuse to comply with community
requirements
Max. sentence that can be imposed on Rachel: 36 weeks

25

k) Breach con dis

• Con dis can only be breached by conviction of a
further offence during the period of discharge, so
in this scenario Rachel would be in breach.
• Can sentence for the original offence in any
manner it could have done when originally dealt
with the offence.
• So, all options open for Rachel, including
custody.
E12.5

26

l) Breach community penalty

The CC may do the following:
•Amend the terms of the community penalty to impose more onerous
requirements, or
•Order a fine to be paid (not exceeding £2,500).
•revoke the order and resentence in any way in which offender could
have been dealt with, or
•Wilful and persistent failure to comply where the original offence was
not imprisonable: revoke the order and impose up to 6 months’ custody;
E8.33
Comparable powers in MC (E8.32)
Can revoke an order on application of offender or probation service due to
change of circumstances e.g. good progress made E8.34

27

m) Deterrent sentence
E1.22

•Deterrence may be taken into account, in connection with
the court’s duty to have regard to purposes of sentencing
including the reduction of crime (including its reduction by
deterrence).
•Exceptional prevalence in the locality may justify an
enhanced sentence but there would need to be supporting
evidence
•If interested: 2011 UK riot cases illustrates the use of
deterrent sentences – see R v Blackshaw (and conjoined
appeals) TLR 25.10.11.

28

n) Time spent on remand
o) Can Judge make upward adjustment
p) Ancillary matters

n)Time spent on remand will automatically count
towards sentence. E2.12
o)Matters of early release, licence and home
detention curfew should normally be left out of
account when imposing sentence.
So judge should not make an upward adjustment
to bring Rachel within a different early release
category. E2.23
p)Compensation and costs

29

Ben Jackson, aged 32, appears at the Crown Court for a Plea and Trial Preparation hearing/
Plea and Case Management hearing. He is facing a single count of Causing Death by
Dangerous Driving. He was driving his car within the speed limit at about 8.00 pm in
November. He approached traffic lights, which were showing red against him, but due to the
fact that he was sending a text on his phone, he drove across them and collided with a
motorcyclist who was killed. Ben has no previous convictions or cautions.
You have advised Ben that he has no defence to the charge of Causing Death by
Dangerous Driving and you have advised him to plead guilty.
Ben says that before pleading guilty he would like some idea of the sentence he can expect.
Questions:
a) What is the procedure where an indication of sentence is sought? [3 marks]
b) What is the effect of an indication of sentence? [3 marks]
c) If Ben pleads guilty at the Plea and Trial Preparation hearing/Plea and Case
Management Hearing, what impact is this likely to have on his sentence? [2 marks]
d) Of what must the judge be satisfied before passing a custodial sentence? [2 marks]
Total: 10 marks

a) The procedure where an indication of sentence is sought [3 marks]:
Maximum of [3 marks] available.
Marks can be obtained from any of the following points:
Normally sought at a Plea and Case Management Hearing/Plea and Trial Preparation
Hearing (1/2 mark – the mark can be given for either phrase i.e. PCMH or PTPH))
Hearing in open court with full recording, both sides represented and accused present (1/2
mark)
In complicated or difficult cases, no less than 7 days’ notice should be given to prosecution
and court (1/2 mark)
If an application is made without suitable notice and the case is inevitably adjourned,
discount for guilty plea should be reduced accordingly (1/2 mark)
There should be little need for court to be involved in the discussions with the advocates
except to seek better information about a troubling aspect of the case (1/2 mark)
Any reference to an indication of sentence would be inadmissible in any subsequent trial (1/2
mark)
Reporting restrictions should be imposed and lifted if/when accused found/pleads guilty (1/2
mark)
Advance indication should only be given if sought by defendant (1/2 mark)
Defence advocate should only seek indication if has written authority from defendant (1/2
mark)
Judge has unfettered discretion to refuse to give indication (1/2 mark)
Where appropriate there should be a written basis of plea (1/2 mark)
Any advance indication should be confined to the maximum sentence if a plea of guilty were
tendered at the stage at which the indication is sought (1/2 mark)
D12.62-65 and LGS 3 PPTS

30

b

b) Effect of an indication of plea [3 marks]:
Maximum of [3 marks] available.
Marks can be obtained from any of the following points:
Once given, it is binding on the judge who gave it and any other judge who becomes
responsible for the case (1 mark) unless a guideline authority from the Court of Appeal alters
the appropriate sentencing level (1 mark) or where a new definitive sentencing guideline is
issued by the Sentencing Council (1 mark)
If, after reasonable opportunity to consider indication, the defendant does not plead guilty,
the indication ceases to have effect (1 mark)
The fact that defendant sought an indication is inadmissible in any subsequent trial should
he maintain a ‘not guilty’ plea (1 mark)
D12.62; D12.65 and LGS 3 PPTS

31

c

c) Impact of guilty plea [2 marks]:
Guilty plea likely to lead to a reduction in his overall sentence (1 mark).
Arguably Ben has pleaded guilty at the first reasonable opportunity so the discount will be
1/3 (1 mark)
Arguably the Plea and Trial Preparation Hearing is not the first opportunity, but since a trial
date has not been set, the discount should be between 1/3 and ¼ (1 mark)
E1.9 and LGS 3 PPTS

32

d

d) Test before custodial sentence can be passed [2 marks]:
Judge must be satisfied offence crosses the custody threshold (1 mark).
The offence, or the combination of the offence and one or more offences associated with it,
was so serious that neither a fine alone nor a community sentence can be justified for the
offence (1 mark).
E2.7 LGS 3 PPTS

33


The admissibility of hearsay evidence where a witness is unavailable (CJA 2003, s116);

The admissibility of hearsay statements in business and other documents ( CJA s 117); and


The admissibility of a previous statement by a witness (CJA 2003, s 120).

NB. The admissibility of hearsay in the interests of justice (CJA 2003, s114(1)(d) and multiple hearsay (CJA 2003, s 121) will also be touched upon. See Hearsay III, week 14 for more detailed coverage.

34

What principles apply when determining the admissibility of a hearsay statement of a witness who is unavailable?

CJA 2003, s116 – witness unavailable.
s116(1)(a) oral evidence of the statement would be admissible and s116(1)(b) the maker of the statement can be identified; and
s116(2) The maker of the statement is unavailable because:
dead (s.116(2)(a)),
unfit to be a witness though bodily or mental condition (s.116(2)(b)),
outside UK and not reasonably practicable to secure attendance (s.116(2)(c)),
cannot be found despite the fact that reasonable practicable steps have been taken to find him (s.116(2)(d)), or
in fear (s.116(2)(e)). Note ‘fear’ widely construed, leave is required & s.116(4) states factors court should have regard for.

35

Where a witness is unavailable through fear, what factors will the court have regard for when considering whether to admit the witness’s hearsay statement?

Under CJA 2003, s116(4), where a witness does not give evidence because they are in fear, leave may be granted to admit hearsay evidence only if the court considers it to be in the interests of justice, having regard to
the statement’s contents;
to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the maker of the statement does not give oral evidence);
whether a direction for special measures could be made in relation to the maker of the statement; and
any other relevant circumstances.

36

Is it a breach of Article 6(1) and 6(3)(d) to convict a defendant in a case where a hearsay statement has been the sole or decisive evidence against him?

Where the hearsay provisions under the Criminal Justice Act 2003 are properly applied, they are consistent with Article 6(1) and 6(3)(d). This is so even where a defendant is convicted on hearsay evidence that is the sole or decisive evidence against him. The CJA 2003 provisions, including the counterbalancing measures and strong procedural safeguards, ensure that hearsay evidence would not be admitted unless it was fair to do so. The leading authority is Al-Khawaja and Tahery v UK [2011] ECHR 2127, and confirmed by Horncastle v UK (2015) 60 EHRR 1331. (see Qu 1(d) below)

37

Where hearsay is contained in a business document, what statutory requirements must be met before it can be admitted in evidence?

CJA 2003, s117 CJA 2003, hearsay evidence contained in a document may be adduced as evidence if:
oral evidence of the statement have been admissible (s117(1)(a));
the document was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder or a paid or unpaid office (s117(2)(a));
the person who supplied the information contained in the statement had or may reasonably be supposed to have had personal knowledge of the matters dealt with in the statement (s117(2)(b)); and
where passed along a chain of people, each person (other than the original supplier of the information) received information in the course of a business etc. (s.117(2)(c)).
NB the supplier of the information may also be the person who creates the document (s117(3)). The supplier of the information does not need to be acting in the course of a business.

38

Where hearsay is contained in a business document and the document is prepared in contemplation of criminal proceedings, what additional statutory requirements must be met before it can be admitted in evidence?

See s117(4) and (5).
In addition the requirements under s117(2), the court must be satisfied that
a) the witness is unavailable for a reason stated in s116(2), or
b) that the supplier of the information cannot reasonably be expected to have any recollection of the matters dealt with in the statement.

39

i) On what basis may the previous statement of a witness giving evidence be admitted; and (ii) what are the statutory requirements that must be met in order for the statement to be evidence of the truth of the matter stated in it?

See CJA 2003, ss119 and 120. 
Previous inconsistent statements may be admitted as evidence of the truth of the matter stated under s119 CJA 2003 where the witness admits making a previous inconsistent statement, or where a previous inconsistent statement made by him is proved using section 3, 4 or 5 of the Criminal Procedure Act 1865. See SGS4 and 5. 
A previous consistent statement may be adduced as evidence of any matter stated under s120 CJA 2003. See SGS4.

40

CJA s120, summary.
Where a witness is called to give oral evidence, previous consistent statements may to rebut an allegation that the witness’s evidence has been fabricated (s120(2)).
(s120(4) A previous consistent statement may be adduced as evidence of the matter stated where witness indicates that to the best of his belief he made the statement and to the best of his belief it is true, and
the statement identifies or describes a person, object or place (s120(5)), or
where the witness made a statement but cannot remember it and cannot be reasonably expected to remember it well enough to give oral evidence (s120(6)), or
(s120(7) where the

the witness claims to be a person against whom an offence has been committed,
the offence is one to which the proceedings relate,
the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,
the complaint was not made as a result of a threat or a promise, and
before the statement is adduced the witness gives oral evidence in connection with its subject matter.

41

What is the procedure that must be followed where a party seeks to admit evidence of hearsay?

See CrimPR, part 20.
Notice required for hearsay under s114(1)(d), s116, s117(1)(c) and s121 only. 
The notice must identify (i) the hearsay evidence, (ii) set out the facts on which the party relies to make the evidence admissible, (iii) explain how that party will prove those facts if they are disputed, and (iv) explain why the evidence is admissible.
The prosecution must serve notice
not more than 28 days after not guilty plea in the magistrates’ court, or
not more than 14 days after not guilty plea in the Crown Court.
Defence applications must be made as soon as reasonably practicable.
If application opposed, notify court and other parties within 14 days of service of the notice to introduce the hearsay evidence.
Admissibiliy may be determined with/without a hearing.
The court has the power to dispense with the notice requirements a or to allow notice to be given in a different form, e.g. orally.

42

Generally, how should the judge direct the jury concerning the weight that should be attached to hearsay evidence?

There is a risk that juries may attach too much weight apparently plausible statements made by a person whose reliability has not been tested through cross-examination.
The judge must make the jury aware of the potential weaknesses of hearsay evidence. In particular
that the statement has not be verified on oath and has not been tested by cross-examination;
the risks of relying on such evidence;
invite the jury to scrutinise the evidence with particular care;
draw the jury’s attention to the context of all the other evidence; and
if there are discrepancies between the hearsay statement and the evidence of other witnesses, the jury’s attention should be drawn to those differences.

43

Q1 a and b SGS 5

The anonymous caller’s statement
Not admissible.
s.116(1)(b) requires witness to be identified.
S.114(1)(d) does not permit hearsay evidence from an anonymous source to be admitted (R v Mayers [2009]1 Cr App R 30 & R v Fox [2010] EWCA Crim 1280, R v Ford [2010] EWCA Crim 2250);

Yousef’s witness statement.
Admissible if court is satisfied that Yousef is a witness in fear (s.116(2)(e)). However, more evidence of fear would be required.
Note s.116(4)(a)-(d);

44

Q1 c SGS 5

Rahim’s witness statement.
Partially admissible under s.116(1) as s.116(2)(a) satisfied.
The part of the statement where Rahim’s says Kia argued with Amir and insulted him is original evidence relevant to Kia’s state of mind. It would be admissible if Rahim were available. As he is not available, it will be admissible as first hand hearsay.
The part of Rahim’s statement which contains Mehrak’s statement is multiple hearsay. CJA 2003, s116 will not apply.
In order to admit multiple hearsay the criteria under CJA 2003, s121 must be considered, specifically s121(1)(c).
The multiple hearsay is unlikely to be admitted, considering the risk of unreliability.

45

‘Sole or decisive’ evidence and ECHR art 6(3)(d)?



R v Horncastle [2010] 2 WLR, SC - will not infringe Art. 6(3)(d) due to safeguards protecting D from unfairness, including, PACE .s78 (prosecution evidence only), CJA 2003, Ss 123, 124, 125 & 126. CJA 2003 is a ‘carefully crafted code’ with safeguards to ensure fairness.

Al Khawaja & Tahery v UK [2011]ECHR 2127- does not necessarily infringe art 6(3)(d) provided there are strong counterbalancing measures:
- is the evidence actually sole or decisive (ie the only evidence in the case or of such significance that it is likely to be determinative of the case)?
- if so, are there sufficient counterbalancing measures to protect D from unfairness?

46

Q 2a SGS 5

Is Tony’s letter admissible under CJA 2003, s117?
Oral evidence of the content of the letter would be admissible at trial. (s117(1))

The letter was written in the course of a trade or business. (s117(2)(a))
The supplier of the information must have personal knowldege of the information supplied. (s117(2)(b)). Note that the supplier of the information does not have to be acting in the course of a trade, business or profession.
The supplier of the infornmation could be Tony or Brian.

47

Q 2a SGS 5

The letter is written in contemplation of criminal proceedings in the first trial- ss.117(4) &(5) apply;
If Tony supplied the information, the criteria under s117(5)(a) apply. Tony is unavailable through illness.
If Brian supplied the information, the criteria under s117(5) are not satisfied. Brian is available and he can reasonably be expected to recollect the matters dealt with in the letter.
Consider whether the letter be regarded as unreliable and excluded under s.117(6) &(7)?

48

2b SGS 5


Are the business records admissible?
These are business records which seem to meet the requirements of s.117(2)(a)-(c): they are likely to be compiled by persons who have first hand knowledge and/or received and recorded information in the course of a business.

These documents do not appear to have not been created in contemplation of criminal proceedings or an investigation or pursuant to a request oro order specified at s117(4). Therefore there is no need to consider s117(5).

49

Q3 SGS5

(a) May Francesca give evidence of what she told Lillian?
Previous statements of witnesses are admissible as evidence under CJA 2003, s120.
If Philip’s defence involved an allegation of fabrication Francesca could give evidence of the previous statement under s120(2).
The previous statement will also be admissible as evidence of a recent complaint under CJA 2003, s.120(4) and (7);
Francesca could give evidence of the previous statement herself (R v Xhabri [2005] EWCA Crim 3135);
There would be scope for admitting evidence of the previous statement through Lillian under s.114(1)(d) (Xhabri);
(b) Francesca cannot remember the type of taxi she took home.
S120(4) and (6) apply. Francesca cannot remember a detail recorded in a statement made when the matters would have been fresh in her memory. It must also be shown that Francesca cannot reasonably be expected to remember the detail well enough to give oral evidence about it.